Tuesday, August 8, 2017

AFT's Machil fake-encounter decision: is it appealable, and if so, by whom?

ThisKashmir Reader story explores who can appeal the recent decision of the Armed Forces Tribunal in the Machil "fake encounter" case. Excerpt:

The decision to release five troopers of 4 Rajputana Rifles convicted in Machil fake encounter by an Army [sic] Forces Tribunal (AFT) can only be challenged by the Indian army, legal experts say. In their opinion, the J&K [Jammu & Kashmir] government relinquished the powers to take the case to a civilian court when they agreed to army’s request court martial.

“If the army wants, they can challenge the AFT decision in the High Courts of Srinagar and Delhi,” said senior lawyer, Zafar Ahmad Shah. “Every order can be challenged and army can challenge the AFT decision under the Indian Constitution.”

Whether the Indian army was ready to take the step is not clear. But legal experts believe that state government can’t exert any power to approach a higher court.

Explaining the legalities, Shah said that the case pertaining to the fake encounter by the accused army men was handled by army itself. “The prosecutor, the accused and the judge belonged to the army after they chose to run a trial in the army court, which they had a right to,” he said.

After filing of the charge sheet in December 2010, the army decided to hold their own court instead of standing trial in a civil court. Shah said, “All the investigation, prosecution and other things were handed over to the army (by the police).”

So it is up to them now whether to file a writ against the AFT which has stayed the conviction of the army court besides suspending the life imprisonment and release the five men on bail on July 26 this year.”

Shah’s views are seconded by noted advocate G N Shaheen. “Yes, army can challenge the verdict, but the question remains whether it will.”

Another legal expert said that “the AFT order can be challenged under 31st section of Armed Forces Special Powers Act (AFSPA).” He explained that the victim families can also challenge the order “but they will have to seek permission from AFT and then, they can even move to Supreme Court”.

1 comment:

Section 2 of the Armed Forces Tribunal Act dealing with “Applicability of the Act” states that the provisions of the Act shall apply to all persons subject to the Army Act, the Navy Act and the Air Force Act. Further, the AFT shall apply to retired personnel subject to the Army Act, the Navy Act, or the Air Force Act, including their dependants, heirs and successors, in so far as it relates to their service matters. Therefore, in case of an appeal relating to court martial, the AFT Act shall be applicable only to those subject to the three service Acts.

Having said so, the Tribunal has exercised its jurisdiction under AFT Act section 15 by suspending sentence awarded to three military accused and granted them bail. In this case, the Ministry of Defence, if considers necessary can appeal to the Supreme Court against an order of the Tribunal. Unnecessary hype has been created by certain section of media and activists on the orders of the Tribunal. This power of the AFT is analogous to the power exercised by a High Court. The case is in progress in the Tribunal’s Principal bench at Delhi. Wg Cdr U C Jha (Retd)